Revisiting Krishna Iyer’s Treatise on
Bail
In the Context of Tejpal’s Case
Shobha Aggarwal
Benjamin
Cardozo and Lord Camdon have brought to the fore as to what constitutes judicial
discretion used by judges in the context of bail:
“The judge even
when he is free, is still not wholly free. He is not to innovate at pleasure.
He is not a knight – errant roaming at will in pursuit of his own ideal of
beauty or of goodness. He is to draw his inspiration from consecrated
principles.” - Benjamin Cardozo[1]
and
“..the
discretion of a judge is the law of tyrants: it is always unknown. It is
different in different men; it is casual, and depends upon constitution, temper
and passion. In the best, it is often times caprice; in the worst, it is every
vice, folly and passion to which human nature is liable …”- Lord Camdon[2]
Js.
V.R. Krishna Iyer and Js. D.A. Desai through their judgement dated 31.01.1978 in
Babu Singh and Others V. The State of
U.P.[3] gave
a scientific orientation to the crucial issue of bail. These judges accepted
that hitherto the ferocity of the crime had eclipsed the real purposes of bail
or jail; that other sensitive and sensible circumstances were ignored, and that
the fate of applicants for bail in the higher judiciary had largely hinged on
the hunch of the bench as on expression of judicial discretion.
The
personal liberty of an accused or convict is fundamental as enunciated in
Article 21 of the Constitution of India: No person shall be deprived of his life or personal liberty except
according to procedure established by law, it can be denied only by procedure
“established by law”. The last four words of Article 21 are the life-force
of that vital human right.
The
fundamental and constitutional right of bail is available to those accused,
charged or convicted. The object to keep a person in judicial custody pending
trial or disposal of an appeal is primarily to ensure the attendance of the
person at trial. That’s the crux. Lord Russel, C.J. ruled:
"I observe that in this case bail was refused for
the prisoner. It cannot be too strongly impressed on the magistracy of the
country that bail is not to be withheld as a punishment, but that the
requirements as to bail are merely to secure the attendance of the prisoner at
trial."[4]
This
theme was developed by Lord Russel of Killowen C. J., when he charged the grand
jury at Salisbury Assizes, 1899:
"....it was the duty of magistrates to admit accused
persons to bail, wherever practicable, unless there were strong grounds for
supposing that such persons would not appear to take their trial.”[5]
In Archbold it is stated that:
"The proper test of whether bail should be granted
or refused is whether it is probable that the defendant will appear to take his
trial ..”
In
all fairness Tejpal surrendered within the stipulated time on 30 November, 2013
after rejection of his anticipatory bail application and has been in custody
since. There is not even an iota of doubt that his conduct while in custody has
been exemplary. He is not digging a tunnel for jail break! A family man, he availed
a few hours of granted leave to attend to his aged mother suffering from
cancer. With mental faculties still about intact – in spite of the initial
press trial and even ‘conviction’ by the corporate media at the behest of the
powers that be – he is busy seeking information under the Right to Information
Act about the total quantum of money spent on the exercise of investigating and
prosecuting him. Even in custody he is abiding by the Article 51 A of the
Constitution of India which states:
“It shall be the duty of every citizen of India to
develop the scientific temper, humanism and the spirit of inquiry and reform.”
Tejpal
is hardly the sort of person who if given bail would not make himself available
for trial. He is unlikely to take the first flight to Timbuktu upon release on
bail and disappear. It is in his own interest to get over with the trial fast.
But he is a victim of the slow motion of the justice system – precisely the
right candidate for bail.
Js.
Krishna Iyer simplifies the guiding principle for those emotionally charged and
are won’t to say goodbye to logic and common sense when bail is being prayed:
“The principal rule to guide release on bail should be
to secure the presence of the applicant who seeks to be liberated, to take
judgement and serve sentence in the event of the court punishing him with
imprisonment.”
Tejpal
does not have a bad record – particularly a record which suggests that he is
likely to commit serious offences while on bail. He is not a habitual offender.
He qualifies for bail on this count too.
Js. Krishna Iyer makes an
impassioned plea for public justice:
“It
makes sense to assume that a man on bail has a better chance to prepare or
present his case than one remanded in custody. And if public justice is to be
promoted, mechanical detention should be demoted.”
Tejpal has prayed for bail so
that he can prepare a better defence of himself. It is a fair enough ground for
his bail.
Justices Krishna Iyer and
Desai elaborate:
“The considerable
public expense in keeping in custody where no danger of disappearance or
disturbance can arise, is not a negligible consideration. Equally important is
the deplorable condition, verging on the inhuman, of our sub-jails, that the
unrewarding cruelty and expensive custody of avoidable incarceration makes
refusal of bail unreasonable and a policy favouring release justly sensible.”
“Our justice system,
even in grave cases, suffers from slow motion syndrome which is lethal to ‘fair
trial’., whatever the ultimate decision. Speedy justice is a component of
social justice since the community, as a whole, is concerned in … the innocent
being absolved from the inordinate ordeal of criminal proceedings.”
Even though the charge
sheet, running into approximately 2846 pages against Tejpal was filed on 17
February, 2014, the charges are yet to be framed and the trial would take a
long time as there are 159 witnesses. Tarun Tejpal’s bail plea was earlier rejected
by the Goa Bench of the Bombay High Court on 14 March, 2014 on the ground that
in view of the recent amendments to the criminal laws the applicant cannot
claim to be released on bail on the ground that the trial will take a long
time, since as per the new law the trial has to be completed within a period of
two months from the date of filing of the charge sheet. This period of two months
elapsed on 17 April, 2014. Tejpal is still in jail and the trial is yet to
start!
Why
should Tejpal and those similarly placed be denied bail when the trial is not
complete within the stipulated period? If the legal system cannot assure that
the time period would be adhered to why deny bail and liberty to the accused.
Tejpal’s trial has not yet started and he has been incarcerated for about five
months.
Forget
Tejpal for a moment. He is just an accused. Juxtapose it with what even those
already convicted by a court stand to avail if they go in appeal. This weighty
issue has been dealt at length by Js. Bhagwati in his judgement dated
02.09.1977 in Kashmira Singh V. The State
of Punjab[6].
The rationale of this practice – not to release on bail a person who has been
sentenced to life imprisonment – could have
no application where the Court is not in a position to dispose of the appeal
for five or six years.
Js.
Bhagwati makes it crystal clear that:
“It would indeed be a travesty of justice to keep a
person in jail for a period of five or six years for an offence which is
ultimately found not to have been committed by him.”
Js. Bhagwati then proceeds on to raise five important
questions:
1.
Can the Court
ever compensate him for his incarceration which is found to be unjustified?
2.
What confidence
would such administration of justice, inspire in the mind of the public ?
3. Would a judge not be overwhelmed with a
feeling of contribution while
acquitting such a person after hearing the appeal?
4. Would
it not be an affront to his (judge’s) sense of justice?
5. Of what avail would the acquittal be to a
person who has already served out his
term of imprisonment or at any rate a major part of it?
Remember that Js. Bhagwati
was dealing with the bail plea of a person convicted of murder and sentenced to
life imprisonment by the High Court who had come in appeal to Supreme Court. Yet
he was granted bail till the disposal of the appeal which could have taken a
few years. Remember again that Tejpal’s case is under trial. Far from being
convicted even the trial is getting inordinately delayed. His bail application
should justifiably be allowed.
[Shobha Aggarwal is an
advocate and Jt. Secretary, Public Interest Litigation Watch Group]
[1] The
Nature of Judicial Process – Yale University Press (1921)
[2]
(I Bovu. Law Dict., ‘Rawles’ III Revision p.
685- quoted in Judicial Discretion – National College of the State Judiciary,
Reno, Nevada p.14).
[3] All citations in this article are from this Supreme
Court’s judgement reported at 1978 AIR 527; 1978 SCR (2) 777; 1978 SCC (1) 579
[4] R.v. Rose 1898-18Cox CC. 717: 67 LJOB 289- quoted in
’The granting of Bail’, Mod. Law Rev. Vol. 81, Jan 1968 p. 40, 48
[5]
(1899) 63 J. P. 193, Mod. Law Rev. p. 49
[6] 1977 AIR
2147
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